Archive for category Privacy
Anti-Counterfeiting Trade Agreement: Analysis
Posted by Margot in Blogosphere, Privacy, Surveillance, first amendment, lamp on March 25, 2010
I’ve written up in detail my comments on the new acta text.
The text reads like a debate between countries. Most of the more salient issues are still up in the air; I’ve tried to pinpoint those issues along with the varying takes on them by different negotiators.
Recurring themes include: 1) regulatory capture by private industries of government resources such as courts and border officials; 2) significant privacy concerns sparked by “sharing” information with rights holders and other countries during investigations; 3) expansion of US law internationally despite contradicting decisions in other jurisdictions; and 4) blatant disregard for existing international IP institutions and norms.
These, in shorter form, are some of the important features to note:
1. ACTA imposes mandatory statutory damages in civil copyright law. Australia, Mexico, and New Zealand do not want this provision, as their law does not include statutory damages (which have been shown in the US to often be grossly disproportionate to the harm done).
2. Privacy in civil cases: accused infringers must produce evidence of the “means of production and distribution” during civil proceedings. The EU proposes that this mandate be subject to data privacy protections.
3. Smaller de minimis exception in border measures: TRIPS provides an exception for the import of “small quantities of goods of a non-commercial nature”. ACTA would further limit this exception to quantities “reasonably attributable to personal use of the traveler”, exempting gifts for other people rather than tying de minimis to non-commerciality as TRIPS does.
4. Ex officio action at the border: Under TRIPS, countries may optionally mandate ex officio action (customs-official-initiated action, rather than by a party) only once a prima facie case of infringement has been shown. ACTA as proposed by the US mandates such ex officio action by all countries (”shall” instead of “may”), and refers to “suspected” counterfeit goods rather than goods for which a prima facie case of infringement has been shown. The government is doing the work of private parties before a substantial case has been established.
5. Privacy: Releasing personally identifying information of border crossers to rights holders without process: TRIPS stated that identifying information be disclosed to rights holders only after a determination that goods were infringing “on the merits of a case”. ACTA as proposed by the US allows release of such information as part of an investigation, once the goods have been confiscated rather than once guilt has been at least initially established.
6. Demands on the court and on border officials: ACTA proposes a fast turn around by the courts in these cases, and encourages governments to absorb storage and application fees to avoid burdening rights holders.
7. Expanding the definition of criminal copyright infringement internationally. TRIPS had a “commercial scale” requirement for criminal copyright infringement. The United States understands “commercial scale” in its domestic law to include acts done for “private financial gain”- which rights holders argue includes downloading pirated music for no cost. The US wants “private financial gain” included in ACTA, and also wants a category of “significant willful infringements that have no direct or indirect motivation of financial gain”- again targeting music and movie filesharing.
8. ACTA enlarges the scope of international criminal law sanctions to mandate imprisonment. TRIPS allowed countries to chose between criminal fines and prison terms, and set no minimum standards for either. ACTA mandates “penalties that include actual sentences of imprisonment” and includes a negotiator’s note requiring countries to “encourage competent authorities” to “impose penalties… including imposition of actual terms of imprisonment.”
9. ACTA exports the Digital Millenium Copyright ACT (DMCA), which includes the US’s understanding of third party liability for copyright infringement, inconsistent with other jurisdictions. New Zealand, for example, notes that it does not find search engine activity to be copyright infringing, and therefore questions why this provision regarding third party liability exists in reference to search engines. Mexico notes that takedown must be requested “by a competent authority”, not a party. Japan also notes that these provisions are not currently consistent with its jurisdiction.
10. Exceptions and limitations, and fair use: The US asks for a note including reference to exceptions and limitations (at the discretion of countries according to the Berne Convention and TRIPs) and fair use (a US concept); the EU wishes to include exceptions and limitations in the actual text of the agreement.
11. DMCA technological circumvention measures. The US wants to expand DMCA criminalization of technological circumvention (”hacking” digital rights management (DRM)). The EU wants to striek the criminalization aspect of this, limiting to civil remedies. Japan explicitly notes that its laws currently allow for circumvention in certain cases; New Zealand notes that circumvention of noncopyrighted works is not a crime, and access control is not a right given to copyright holders.
12. International cooperation: ACTA mandates cooperation between countries in criminal IP infringement cases. The EU proposes “particular attention… to infringing goods detrimental to… health and safetly.” This potentially targets the distribution of generic medicines.
13. Information sharing between countries: parties are debating whether countries “may” or “shall” share information during investigations. This could be extremely problematic for countries with different standards of privacy norms and laws.
14. Paternalistic crafting of domestic legislation: Countries must work with countries not party to ACTA to craft domestic legislation that brings them in line with ACTA. Canada wishes to strike this provision.
15. Officially fostering dialogue with private party righs holders: The US wants to establish formal mechanisms for authorities to hear the view of rights holders. Again, this looks like the government doing work on behalf of private entities.
16. Transparency of process- with major discretional exceptions: Exceptions to transparency of ACTA-mandated investigations include whether they would be “contrary to … domestic laws or policy” or “the public interest”- extremely vague, governmentally discretionary terms.
17. A new IP institution to Preserve ACTA? The ACTA “Committee” would oversee disputes, amendments to ACTA, and supervise implimentation. This disadvantages those devleoping countries who are not original signatories to the agreement.
18. Only five states are required for ratification. Effectively, the five most powerful can rush to sign on to terms everybody else will have to take on later.
MFIA Amicus in Illinois First Amendment case- with EFF
Posted by Margot in Newspapers, Privacy, first amendment, lamp, news on March 23, 2010
The Media Freedom and Information Practicum is proud to announce that, along with EFF, it has filed a friend-of-the-court brief urging the Illinois Court of Appeals to block the unmasking of an anonymous online critic of a local political candidate in the comments section of a local newspaper’s website.
Battle Over Message Board Flame War Must Not Circumvent the First Amendment
The First Amendment provides qualified protection for anonymous speakers. MFIA and EFF encourage the court to recognize such protection by instituting the same process established by other courts across the country (see, eg, Dendrite).
The viability of newspaper websites as forums for such political discussion and whistleblowing is at stake, along with fundamental First Amendment values inherent in the protection of political speech.
For the full brief, click here.
why surveillance matters
Posted by Margot in Privacy, Surveillance, first amendment, lamp on October 13, 2009
As a follow-up to Nabiha’s great post on terrorism and open access:
As Nabiha said, our interest in terrorism-related issues has to do with the barriers the government places to access.
Our interest in surveillance speaks more generally to the democratic conditions necessary for newsgathering. Newsgatherers cannot properly gather news if they know that they’re being watched. And journalists and protestors are often the deliberate targets of surveillance, alongside more conventional “threats”; see Ken Krayeske’s experience, or the experience of anti-war protestors with the TALON database.
PATRIOT Act renewal bill has passed Senate Judiciary Committee
The PATRIOT Act renewal bill has passed the Senate Judiciary Committee without key civil liberties reforms attached.
Missed opportunities for reform include: requiring the government to show a connection to a suspected terrorist or spy in seeking Americans’ records through National Security Letters (NSLs); letting the “lone wolf” wiretapping authority expire; stopping the government from using the FISA Amendments Act to collect Americans’ phone calls and internet communications in bulk.
EFF advocates attaching the JUSTICE Act to the renewal bill when it’s debated by the full Senate.
Intelligence Fusion Centers
We are very interested in Fusion Centers.
For now, let’s just leave it at that.
Some current information: there evidently are 72 state-based intelligence fusion centers, and Janet Napolitano just announced that DHS is creating a new office to support them.
Things this office will do, according to Matthew Harwood at Security Management, include the following:
“It will survey state, local, and tribal law enforcement to get feedback on what information these “first preventers” need to do their job. The office will also develop a mechanism to gather, analyze, and share both national, regional, and local threat information up and down the intelligence network. Third, the office will coordinate with fusion centers to continuously ensure they get the appropriate personnel and resources from DHS. Fourth, the JFC-PMO will provide training and exercises to build solid relationships between fusion center personnel and promote a sense of common mission. Finally, the office will train fusion center personnel to respect the civil liberties of American citizens.”
That last mission sounds great, doesn’t it?
Of FOIA & Free Access
Posted by Adri in Privacy, first amendment, lamp on October 6, 2009
It’s a point of no contention to folks here at LAMP that court documents are and should be legally required to be in the public domain. But public domain currently means paying 8 cents a page to read docs on PACER — the federal judiciary’s Public Access to Court Electronic Records database. This law student can personally attest that the system is, simply put, really annoying to use. ( WIRED Magazine has described the interface as feeling like something designed for the DMV).
Open gov activists have responded to the unwieldiness of PACER by proliferating a variety of alternative online law libraries, a trend that will be discussed in a Yale ISP/ACS talk today entitled: “RECAPture the Law: The Growing Movement to Free the Electronic Record,” by Princeton’s Stephen Schultze and Harlan Yu.
There’s a dark side to this sunshine story, however . . . Last fall, a 22-year-old programmer named Aaron Swartz took advantage of the government’s offering of a free PACER trial period to run a script on a library computer that downloaded (or in the FBI’s language, “exfiltrated”) massive compilations of federal court records to be released the public. When the government realized what was up, they initiated a criminal investigation of Swartz, obtaining his identity, phone number, and home address from Amazon.com — even considering staking out his house. How did Swartz find out about the investigation of him? Through a Freedom of Information Act request for his file.
For you citizen journalists and programmers out there who are curious about what your own file may hold, you can find template FOIA requests at the FBI’s FOIA / Privacy Act website. Don’t let them stonewall you by asking you to send in fingerprints either — you shouldn’t need that unless you are specifically requesting your NCIC criminal record.
The other side of access
Posted by Margot in Privacy, first amendment, lamp on October 2, 2009
Our goal as a practicum, as Nabiha mentioned, is to perform a “sunlight” function traditionally served by legacy media. The structure of “new media”, as many have observed, is extremely conducive to open-access policy: you can now store, search, share, and discuss massive amounts of data and documents, both online and off.
There’s another side to the story, however: when you do your online browsing and posting, the trail you leave, both intentionally and unintentionally, paints an easy portrait for those who care to find it. (See Michael Seringhaus & Mark Gerstein’s “Putting too much information online can erode individual privacy”)
This feature of new media arose organically as part of the search for a new market structure, and it isn’t always as nefarious as it sounds. As content moved online, publishers have struggled to monetize it. Subscriptions failed (see the oh-so-brief run of “Times Select”), and online ads are not as valuable as their print counterparts. (Whether the ad-deflation happened because Madison Avenue overvalued its print campaigns, or because online advertising undervalues its click-throughs is hard to say…)
But one thing is clear: data mining wasn’t invented for the Internet, but its use certainly exploded due to it. As Stephen Baker writes in “The Numerati”, number-crunching became much more valuable when people realized that the Internet offered a new way of marketing. And once it became valuable, the programs proliferated– and once they proliferated, the government stepped in to use them.
The problem with data mining is how unapparent it is to most individuals: you don’t know what’s being collected on you, and you don’t know what it may be analyzed to mean. But data mining isn’t always a bad thing. It can allow a content provider or platform to get value from its user base while still anonymizing all data, by offering advertisers spots that are targeted to groups with particular features (27-year-old females who listen to Radiohead, for example). The content provider or platform gets to sell advertisers access to the group they want, while still respecting user anonymity and not handing anything over to outside companies.
This is the best case scenario.
Where data mining becomes more frightening, as Baker aptly points out, is when it is used to comb through information to predict what you’ll do next. In the context of marketing, few people are hurt by this: few people care if the grocery store analyzes your past behavior and mis-predicts your likes or dislikes. But if the government mis-profiles you based on sites you post on or your credit-card trail, the consequences become a lot more frightening.
New media is wonderful– but even as it allows us to access information, it also allows information to be gathered about us. And we have less control over it than one might think: disparate pieces of seemingly harmless information can be used to “profile”.
Part of our work here, then, will focus on the other side of access facilitated by new media: promoting a right to anonymous speech or search online, and tracking — and “sunlighting”– when tracking occurs.